January 03, 2007

What I call "Kerryism" has just erupted in New Jersey. Kerryism is the headlong rush to turn Americans into correctly thinking European elites. Proving every simplistic caricature of liberal thinking, Kerryism is interested in making people feel as if they're doing something good and not so interested in the real-world consequences of what they do. To see what I mean in this context, please read on.

A legislative committee appointed in New Jersey, over a single dissent, has just released a report recommending abolition of the death penalty and imposition of life without parole instead. The report itself is found here.

Let me start with the good news. The commission member representing crime victims' groups agreed with the conclusion not because she think the death penalty's wrong but because it has been abused by the courts.

As I made perfectly clear throughout the study process, I personally support the death penalty and I have openly stated, “I have as much compassion for these perpetrators as they had for their unfortunate victim(s).” However, I and other advocates, who have been in the trenches for many years, can bear witness to the agony of survivors forced to endure the capital punishment system in our State and recognize the need to end what has become a “joke” in New Jersey.

(page 94) The report goes downhill from there.

I've had time only to skim the report, but I'll point out a few highlights (lowlights?) and conclude with a warning about the unintended consequences of Kerryism.

First, the panel's very first finding was that "There is no compelling evidence that the New Jersey death penalty rationally serves a legitimate penological intent." Let that one sink in. If you know anything about rational-basis review in the equal-protection context or the so-called Turner v. Safley standard applied in reviewing prison regulations, you'll understand what happened here. The commission took a deferential standard and monkeyed with it by flipping the burden of proof. New Jersey currently has capital punishment, but the commission insisted upon "compelling evidence" to avoid its abolition. The commission's report discussed the arguments pro and con regarding deterrence, retribution, and incapacitation, but since there was disagreement as to each, that wasn't "compelling evidence" justifying existing law.

The commission was divided about whether retribution is an appropriate penological intent. Of the commission members who felt that retribution is an appropriate penological intent, some felt that this intent is achieved by incarceration, so the death penalty is not indispensable for achieving it. Other members felt that the desire for retribution is trumped by the serious problems with the death penalty like cost, irreversible error, and inconsistency with evolving standards of decency.

(page 30) In other words, people disagreed about it, so they threw it out.

Second, the commission found that "There is increasing evidence that the death penalty is inconsistent with evolving standards of decency." The "evolving standards of decency" trick is the hallmark of Kerryism. Whose standards? Those of the elites we should be emulating. Now, I want to be clear here that the commission did not directly cite European elites; it did so indirectly by citing Supreme Court opinions that relied on international standards. (For example, Roper v. Simmons makes an appearance at pages 38-39.)

Third, in discussing "evolving standards of decency," the commission relied in part on testimony of a rabbi that "Conservative and Reform movements of Judaism have passed several resolutions in the last 10 years advocating the elimination of the death penalty as violative of their religious principles." (page 36) This kind of argumentation drives me absolutely nuts, because it's so hypocritical. Now, it's certainly true that rabbinic law placed so many conditions on capital punishment that it was effectively abolished. But New Jersey doesn't operate under Jewish law, the last time I checked. Why is it that the political left thinks it's perfectly OK to invoke religious law against the death penalty, but if a Catholic ever suggests that we should place any legal restrictions on abortion, that's somehow an improper intrusion of religion into public affairs?

Fourth, there's a lot of double counting going on. The courts put stumbling blocks in the way of pursuing capital punishment, and the commission unquestioningly treated them as appropriate and cited the problems resulting from them as evidence that capital punishment doesn't work well.

Last, there's a total lack of concern about the consequences. I don't mean here that abolishing capital punishment will cause a spike in the murder rate. I have no idea whether it will, and I almost don't care. To me, the reason for capital punishment is retributive. We have a moral obligation as a society to affirm the value of life by denying it to people who steal life away from others. (That sounds paradoxical, but it's not; if you don't follow the most basic rules, you're out of here.) I also think, while it is debatable whether capital punishment results in general deterrence, there is no doubt that it deters the criminal who is executed from ever murdering again. And this leads me to my point about consequences.

Abolition of the death penalty, with the substitution of life without parole, leaves the state with no punishment to impose on a murderer who kills a prison guard. It's open season on the guards.

In addition, once you abolish the death penalty, who's going to devote the resources that are now invested in trying to prove the criminal's innocence? It's an open secret that the only reason lawyers devote their time pro bono to defend murderers is that these are capital cases. Take away the penalty, and the supply of lawyers dries up. Any prisoner serving a term of life without parole is going to be stuck, even if he's arguably innocent. If you really care about wrongful convictions, you're shooting yourself in the foot by abolishing the death penalty.

I have little doubt that some people do sincerely care about wrongful convictions. But that really wasn't the point about this commission, insofar as one can judge from the report. Instead, the tenor of the report is that New Jersey needs to get with the times, and the times, they are evolving.

ADDENDUM: I had this in my notes, and it was too good to leave out. At page 45, the report says that racial bias in capital punishment hasn't been shown, we don't want you to think we aren't right-thinking folk:

The Commission also notes with concern that although there is no demonstrated racial bias in the administration of the capital punishment system in New Jersey, the percentage of African American persons in New Jersey’s correctional institutions far exceeds the percentage of African Americans in the general population.

The implication is that racism is responsible for this, which is to say that if there were no racism, the racial and ethnic composition of the prison population would precisely mirror the composition of society at large. Tell that to the over 90 percent of prisoners who are male.

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